Gandolfi v NatWest

[gandolfi]

I've posted this on Photoman's business thread http://www.consumeractiongroup.co.uk/forum/business-claims-bank-charges/68191-claiming-business-account-lets-77.html but thought I'd post here aswell.....

 

I've been trying to find more background info on the results of the Bank's unsuccessful appeal against the OFT test case rulings. I'm particularly interested in what happened in relation to NatWest's T&Cs.

 

Is it true that Nat West's historical terms (pre-2003?) may still be termed 'penalties'? What was said in February's appeal hand down that implies this?

 

This sounds like good news for my claim which is almost entirely pre-2003.

 

My case is currently stayed, but I'm eager to get going again if people think there is a possible route through. Any further information would be much appreciated.

 

Thanks in advance,

Gandolfi

[gandolfi]

Hi Guys

I'm hoping someone (photoman? Martin3030? GaryH? Guido T? yourbank?) might have a look at the letter below, to see if it sounds OK, or if I've made any big mistakes.....

 

One last try before I apply for the stay to be lifted

 

 

"WITHOUT PREJUDICE SAVE AS TO COSTS 1st April 2009

 

Dear Sir/Madam

 

Following recent Judgements in the OFT test case, I am hoping that this case can be resolved quickly. I am now writing with regard to your letter (xx/xx/xxxx), with further requests for essential information pertinent to this case.

 

In response to the queries that you presented in your letter, I would like to clarify the following points:

 

1) The figures included on the schedule of charges relating to the ‘account balance at interest date’ were calculated as an average for the interest period that reflects the amount of interest charged by the Bank. Without the Bank’s own daily interest calculation software, it is not possible to reach a definitive figure, but a reasonable lay-person’s effort has been made to give as accurate a figure as possible. If you wish to query or contest these calculations, please provide the actual balance at each daily interest point and a full breakdown of how interest has been calculated by the Bank for the interest period.

 

2) Interest from Business Development Loans is included as part of ‘interest charged’ because the loans were taken out solely in respect of indebtedness caused by the Bank’s unfair charges. Please note that the cumulative charges and interest are greater than the amount borrowed in each instance.

 

3) Thank you for bringing to my attention the refunded charge on xx/xx/xxxx. I have amended the schedule of charges and I will also submit these amendments to the Court (revised Schedule of Charges and Interest is attached).

 

4) Your refusal to provide further documentation in your last correspondence cannot be justified by the current stay on this case. This information was requested in a Subject Access Request (Data Protection Act) and a CPR 18 Request in 2007. You are obliged to meet these requests regardless of the stay. Please note that if you do not respond positively to my request for full disclosure of the information requested, I will seek a compliance order from the Court without delay.

 

 

As stated in my original REQUEST FOR INFORMATION AND CLARIFICATION UNDER CPR PART 18 (DATE OF SERVICE: xx/xx/xxxx), it is essential that you provide the items listed below without delay, in order that I may fully particularise and support my Defence and Counterclaim.

 

 

a) A true copy of any Default Notice/s issued in respect of these accounts, as referred to in paragraph 3) of the particulars of claim;

 

b) Full Terms and Conditions and charges tariffs relating to each account (including the Personal Current account shown above), from the date when the accounts were opened and including any revisions or amendments to the present day.

 

c) Specific details of all fees/charges levied by National Westminster Bank in respect of these accounts and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

 

d) Where there has been any event in my accounts' history which has required manual intervention by any member of National Westminster Bank, or any other person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my accounts held or formerly held with National Westminster Bank. If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.

 

The information must be furnished by the xxth April 2009, which gives you seven working days to provide what has been requested. Should you choose to ignore this request, fail to comply in full, or fail to comply on time, this will be reported to the Court and an order enforcing your compliance will be sought without delay.

 

 

If you are unable or unwilling to provide this information, I would urge you to settle this matter now in order to save costs and accruing interest. My claim including interest to date is £xx,xxx, plus Court costs of £xxx. I have attached a schedule of charges and interest, detailing the amounts claimed. This claim will therefore continue until payment of £xx,xxx is made in full and final settlement.

 

If you do not agree to settle this amount in full, I will consider making an application to the Court for the stay to be lifted on the basis of Justice Smith’s recent Judgement regarding Nat West’s historic terms. This should allow for my case to proceed regardless of separate deliberations by the OFT regarding fairness.

 

I will also bring to the Court’s attention what I believe to be the unjust enrichment of National Westminster Bank while this stay continues to be in place. The Bank has continued to charge 29.5% interest on the disputed account, despite my request in April 2007 to freeze interest until this dispute is resolved. Furthermore, in the months before the OFT test case, your client delayed and frustrated the progress of my Defence and Counterclaim by not complying with my CPR 18 Request for information that would support my case. This has resulted in an extremely long period of time when the Bank has charged an extraordinarily high rate of interest on the disputed debt. They have now charged more than £3500 interest over two years. This, combined with the current stay on this case, has created a situation that I believe unfairly privileges the Bank at my expense.

 

I trust this clarifies my position. I look forward to your response and hope that further action will not be necessary.

 

Yours faithfully,

Gandolfi"

 

 

Hope this covers everything. Let me know what you think...?

All best,

Gandolfi

[yourbank]

Why have you referred to Justice Smith's argument because he didn't state that the NatWest terms WERE penal but "I therefore remain unpersuaded that the Relevant Term in the NatWest 2001 conditions is not capable of being penal."(just a point of order).

[photoman]

Your letter was excellent, and I just planned to have a little jiggle with it..... but then got a bit carried away.

 

By all means, use your own best judgement, either use the letter as it stands, or jiggle about yourself, or incorporate some of my own ideas below ?

 

In any case, regardless of how the letter is worded or laid out, IMHO I don't think they'll settle at this point..... and you will then have to make the decision as to whether or not to proceed.

 

It's then a bit of a toss up as to whether a judge would lift the stay, and then a bit of a toss up as to how he (or another) would then view the actual terms in question. I've not seen them, and so couldn't say how sufficiently different they are to later terms. And in any case, such would only still be open to interpretation by a judge.

 

However, no harm in sending a letter at this point, as it shows how you continue to try to be reasonable.

 

Regards

 

 

PM

 

 

 

 

 

"WITHOUT PREJUDICE SAVE AS TO COSTS

 

 

Dear Sir/Madam

 

I am writing with regard our present dispute, and my aims to resolve this matter.

 

Firstly, with reference to your letter of (xx/xx/xxxx), regards your requests for essential information pertinent to this case.

 

I would like to clarify the following points:

 

1) The figures included on the schedule of charges relating to the ‘account balance at interest date’ were calculated as an average for the interest period that reflects the amount of interest charged by the Bank. Without the Bank’s own daily interest calculation software, it is not possible to reach a definitive figure, but a reasonable lay-person’s effort has been made to give as accurate a figure as possible. If you wish to query or contest these calculations, please provide the actual balance at each daily interest point and a full breakdown of how interest has been calculated by the Bank for the interest period.

 

2) Interest from Business Development Loans is included as part of ‘interest charged’ as the loans were taken out solely in respect of repayment of indebtedness caused by the Bank’s unfair charges. It must be particularly noted that the cumulative charges and interest are greater than the amount borrowed in each instance.

 

3) Thank you for bringing to my attention the refunded charge on xx/xx/xxxx. I have amended the schedule of charges and I will also submit these amendments to the Court (revised Schedule of Charges and Interest is attached).

 

4) Your refusal to provide further documentation in your last correspondence cannot be justified by the current stay on this case. This information was requested in a Subject Access Request (Data Protection Act) and a CPR 18 Request in 2007.

 

 

Further to point 4:

 

As stated in my original REQUEST FOR INFORMATION AND CLARIFICATION UNDER CPR PART 18 (DATE OF SERVICE: xx/xx/xxxx), it is essential that you provide the items listed below without delay, in order that I may fully particularise and support my Defence and Counterclaim:

 

a) A true copy of any Default Notice/s issued in respect of these accounts, as referred to in paragraph 3) of the particulars of claim;

 

b) Full Terms and Conditions and charges tariffs relating to each account (including the Personal Current account shown above), from the date when the accounts were opened and including any revisions or amendments to the present day.

 

c) Specific details of all fees/charges levied by National Westminster Bank in respect of these accounts and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

 

d) Where there has been any event in my accounts' history which has required manual intervention by any member of National Westminster Bank, or any other person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my accounts held or formerly held with National Westminster Bank. If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.

 

 

You are required to comply with these statutory and legal obligations regardless of the current stay.

 

If you do not respond positively to this repeated request by the xxth April 2009, I will seek a compliance order from the Court without delay.

 

 

 

I am now preparing to take the following actions:

 

1/ An application to the Court for the current stay regards this case to be lifted.

This would be upon the contention, that a recent ruling by Judge Justice Smith has quite particularly refused to declare the contractual terms upon which your client relies as not giving rise to the possibility of such charges being penalties at common law.

Therefore, as my case does not include any further pleadings regards fairness under the UTCCR99, there is now no longer any barrier to allowing this case to proceed to trial to determine the penal aspect of such charges.

 

2/ I am also preparing evidence to be brought to the Court’s attention of your clients unreasonable conduct and actions. National Westminster Bank have been deliberately obstructive throughout this whole case, whilst also continuing to unjustly profit at my expense.

Such actions include (but are not limited to);

i/A continuation of the practice of charging 29.5% interest on the disputed account, despite my request in April 2007 to freeze interest until this dispute is resolved. This has resulted in a long period of time throughout which the Bank has charged extraordinarily high rates of interest on the disputed debt (amounting to more than £3500 over the last two years).

ii/ Your client also delayed and frustrated the progress of my Defence and Counterclaim by not complying with my CPR 18 Request for information that would support my case.

 

These actions have created an ongoing situation (wholly of the banks doing) that unfairly privileges them at my expense, and as such, these actions will be brought to the attention of the courts either in part or in a separate action for wasted costs, expenses and damages.

 

 

I am still prepared to now allow you one final chance to settle this matter without further recourse to the courts.

Therefore I once more attach a full schedule of the charges and debited interest claimed.

 

The charges and debited interest claimed presently stand at £xx,xxx.

 

Plus the Court costs and expenses of £xxx.

 

This sum is also subject to statutory interest, which at present is £XXX.

 

Therefore, I will now accept the sum of £XXXX.XX.

 

This sum would be accepted in full and final settlement, but only if it is received within the next 7 days.

 

I would strongly urge you to settle this matter NOW, in order to save yourself further costs and accruing interest.

 

 

I trust this clarifies my position, and I look forward to your response.

 

Yours faithfully,

 

Gandolfi"

[gandolfi]

Why have you referred to Justice Smith's argument because he didn't state that the NatWest terms WERE penal but "I therefore remain unpersuaded that the Relevant Term in the NatWest 2001 conditions is not capable of being penal."(just a point of order).

 

yourbank

I understood that recent directions from the test case implied that Natwest's historical T&Cs showed that charges may be penal (or that the Judge hadn't been persuaded that they weren't). I've been trying to get a clearer picture of this, but don't fully understand yet.

 

Martin3030 is currently working on a stickie regarding these issues, but in a recent post here http://www.consumeractiongroup.co.uk/forum/business-claims-bank-charges/68191-claiming-business-account-lets-77.html he suggested that I could apply for the stay to be lifted on this basis. He said:

 

"The position is that Claimants with Business accounts on stay that rely on terms and conditions which were deemed unfair in Natwests appeal should apply on notice to have the stay lifted.

The basis for the application is self explanatory,and needs to include as supporting evidence,the Judges directions from the trial."

and [re: the N244 form]

"In the box which asks what order you are applying for-you state "Removal of the stay ordered in this case on......"The reason is outlined in my witness statement and attatched supporting documents.....

The witness statement gives a brief outline of the test case directions.

Attatchments include the wording of the hand down given in February following the appeals by NatWest and others."

 

Is this correct?

Many thanks,

Gandolfi

[yourbank]

I think you have to re read the reasoning behind Justice Smiths decision making and apply it to the NatWest terms 2001-2003. On point 14 of the January appeals, I think what Justice Smith is determining is when a card is used to take the account over the overdraft limit.

http://www.oft.gov.uk/shared_oft/personal-current-accounts/bank-charge-judgment3.pdf

The above is the January judgement. I am not sure if Martin3030 is right but I think you will have to argue each particular term to the charge that was levied on the business account IMHO.

[gandolfi]

Photoman - I really appreciate your jiggling! A much more assertive tone in the letter! Thank you.

The only part I may re-jiggle is the statement

 

Therefore, as my case does not include any further pleadings regards fairness under the UTCCR99, there is now no longer any barrier to allowing this case to proceed to trial to determine the penal aspect of such charges.

 

My case is still partly (10%) claiming charges on a personal account, so I don't want to totally dismiss the OFT's 'Unfairness' decisions before they are reached (they may be useful later....?)

 

 

yourbank that is very useful indeed. Good to read the Judge's comments first hand and try to comprehend the minutiae of what is being deliberated. Am I right in thinking that there are further Directions from the Judge in February, or is this the crux of the matter re: Nat West's penal T&Cs?

 

My query is this...if you use your card to go into unauthorised overdraft and the bank charges you, the charge is a penalty. If a Direct Debit subsequently bounces because you are overdrawn, is that not a penalty?

 

My head hurts. Good to be thinking about this again and formulating a new strategy. Thanks for your help!

 

All best,

Gandolfi

[MARTIN3030]

I am helping another user with a case similar to yours.

Your bank is correct-you need to reconcile the terms and conditions to those Smith looked at.

I have posted elsewhere his initial thoughts from the October judgement.These are covered in paras 120-130.

I posted a link to this in Photomans thread on further discussion.

In the case I am helping with, Cobbetts have claimed that the Smiths judgement on historical charges being capable of penalties under those terms does not apply to Business accounts.

Its my contention that they are manipulating things to suit them.

Cobbetts are now asking claimants to have the stays lifted and they are giving consent.

Its very important that you therefore get a copy of your terms and conditions.

 

link to October Judgements.-Look at Paras 120-130

 

 

 

 

1. [PDF] Neutral Citation Number: [2008] EWHC 2325 (Comm) Case No: 2007-1186
    
    
   148k - Adobe PDF - View as html
   In my judgment in this action dated 24 April 2008, [2008] EWHC 875 (Comm) (my " ... of being penal, leaving in dispute a relatively small number of terms ...
   www.judiciary.gov.uk/docs/judgments_guidance/oft-oct-judgment.pdf
   

 

 

You should also be looking at the Judgement of January.

Edited April 8, 2009 by MARTIN3030

[gandolfi]

Hello All

A short while ago I wrote to Cobbetts to reiterate my request for T&Cs, other information and clarification, that I had originally requested in a CPR18 request in 2007. Once again, they have failed to provide the information requested....no response to my letter at all, so far.

 

I now need to ask the Court to order their compliance with my CPR18 request (despite the current stay on my case).

 

How do I go about doing this?

 

Your help, as always, much appreciated!

 

Gandolfi

 

PS - My letter (but not the original CPR18 request) was sent 'without prejudice'. Can I make its contents known to the court?

[GaryH]

Hey, long time no see! Hows things going?

 

Unfortunately you cannot make any applications to the court while the claim is stayed. Keep pursuing the other side for it though, and tell them that if they don't provide it you'll make an application as soon as the stay is lifted for which you will be seeking your costs.

 

Was the letter an offer or genuine settlement attempt? If not it carries no privilege anyway and so can be disclosed. If it was an offer, then no it can't be disclosed - you can't waive privilege unilaterally.

 

HTH

[MARTIN3030]

Its the bank who would need to be supplying your terms and conditions-although Cobblers should have requested them.

You can seek compliance through the Court after the stay is lifted-but would be good to be able to show some response that they cannot comply-or feel they dont need to comply.

I would give them a call to ask if you will be getting them.

[MARTIN3030]

By the way-I was informed earlier on in the week about an offer of settlement being made.

Its A NW business account that was on stay.

Cobblers originally offered around 25% and made 2 further offers....Claimant has decided to accept their final offer which represents around 80% of claim value.

I cannot disclose more since the user wishes to remain annon.

But it shows that they are still open to talking-albeit not for 100%.

Given the uncertanties over the next few months,its a hard decision to have to make.

This week I wrote to the OFT and the FOS to ask whether there is any possibility that the OFT will seek rights to decide on fairness for business account charges as well as personal current accounts in the appeal next month.....I will let you know what they say.

Edited May 16, 2009 by MARTIN3030

[GaryH]

Its the bank who would need to be supplying your terms and conditions

 

True but Cobbetts are on record as acting for them so any p18 requests, etc need to be made through them.

 

Although, I suppose you may be able to circumvent Cobbetts and just go in to the bank and ask for them? If they ask what its for just make something up. Worth a try (apologies if you've tried that already!)

[MARTIN3030]

Yes I know this Gary-My reasoning was that Cobbetts are ultimately dependent on the Bank.

[gandolfi]

Hey, long time no see! Hows things going?

 

Unfortunately you cannot make any applications to the court while the claim is stayed. Keep pursuing the other side for it though, and tell them that if they don't provide it you'll make an application as soon as the stay is lifted for which you will be seeking your costs.

 

Was the letter an offer or genuine settlement attempt? If not it carries no privilege anyway and so can be disclosed. If it was an offer, then no it can't be disclosed - you can't waive privilege unilaterally.

 

HTH

 

Hi GaryH!!!

Great to hear from you glad you're still helping on CAG! Hope all is well with you...

 

Things are OK, but I'm getting a bit frustrated with the fact that my case is stayed and they're charging me 29.5% interest on the disputed overdraft. This amounts to more than £100 p/month!

 

The case started two years ago and they stalled for ages before the OFT case began. My CPR18 request was submitted before the stay and they have never complied with it. The letter I sent was to restate the CPR18 request. The only offer made was that 100% settlement would put an end to the matter.

 

I want to get the case moving again, but this is difficult without the historic T&Cs. Can I make an application for the stay to be lifted with directions from the Court for them to comply with the CPR18 request?

 

Many thanks,

Gandolfi

 

PS - Thanks for the info on recent settlements MARTIN3030...that is encouraging news!

[GaryH]

Hi GaryH!!!

Great to hear from you glad you're still helping on CAG! Hope all is well with you...

Yes I'm very well thanks. Still here, although unfortunately I haven't been able to commit the sort of time to CAG recently as I used to, so to be honest I'm a little bit out of the loop with it all.

 

The letter re the part 18 can be disclosed.

 

Am I right in thinking that the charges all relate to a business account?

 

If so, when does the stay expire? As far as I am aware there was a ruling from the High Court that certain Natwest terms in use beteen 2001 - 2003 are capable of amounting to penalties, but no others (obviously business account terms were not considered). Are the bank appealing on this point? If not then I can't see any reason your case should remain stayed. The remainder of the test case will relate solely to the UTTCR which is irrelevant and the outcome will be of no assistance to business accounts whatsoever.

 

The outcome of your claim all depends on the account terms. As the matter is fast track, even notwithstanding the fact that you have requested them under the p18, they have a duty of disclosure which obliges them to disclose all relevant documents anyway.

 

I would write a strongly worded letter telling them that they have a duty to disclose the documents you have requested, and that costs are being incurred, and court time wasted, wholly unnecessarily by their unreasonable refusal to comply with the rules. Tell them that you appreciate the matter is currently stayed, but in mind of the overriding objective you expect them to be provided nonetheless.

 

Give them 21 days to clarify their position and tell them that if you do not hear from them, given that the remainder of the test case is irrelevant to business accounts, that you'll make an application to lift the stay and for a response to your part 18 and seek your costs on the indemnity basis.

 

You may also wish to make a part 36 offer in a seperate letter.

 

If they don't respond, then subject to someone correcting me on my understanding of what the remainder of the test case will (and will not) determine, then you may wish to think about applying to remove the stay.

[gandolfi]

Yes I'm very well thanks. Still here, although unfortunately I haven't been able to commit the sort of time to CAG recently as I used to, so to be honest I'm a little bit out of the loop with it all.

 

The letter re the part 18 can be disclosed.

 

Am I right in thinking that the charges all relate to a business account?

The majority of my claim is sole trader business related. However, my personal account claim (much smaller) was included in my counterclaim - it is about 90/10% business/personal.

 

If so, when does the stay expire?

At the conclusion of the test case I think.

 

As far as I am aware there was a ruling from the High Court that certain Natwest terms in use beteen 2001 - 2003 are capable of amounting to penalties, but no others (obviously business account terms were not considered). Are the bank appealing on this point? If not then I can't see any reason your case should remain stayed. The remainder of the test case will relate solely to the UTTCR which is irrelevant and the outcome will be of no assistance to business accounts whatsoever.

 

No, they haven't appealed. The Judge in the High Court ruling refused to say that a term in pre-2003 T&Cs was not a penalty, which isn't the strongest commitment to my side of the story! but still very useful, as most of my case is before that period.

 

 

The outcome of your claim all depends on the account terms. As the matter is fast track, even notwithstanding the fact that you have requested them under the p18, they have a duty of disclosure which obliges them to disclose all relevant documents anyway.

Is my claim fast track? It is a substantial figure of £20,000+ Does this mean that I can also demand full disclosure of their costs involved in each disputed charge? I could then show that their charge doesn't equate to their liquidated damages....

 

 

I would write a strongly worded letter telling them that they have a duty to disclose the documents you have requested, and that costs are being incurred, and court time wasted, wholly unnecessarily by their unreasonable refusal to comply with the rules. Tell them that you appreciate the matter is currently stayed, but in mind of the overriding objective you expect them to be provided nonetheless.

 

Give them 21 days to clarify their position and tell them that if you do not hear from them, given that the remainder of the test case is irrelevant to business accounts, that you'll make an application to lift the stay and for a response to your part 18 and seek your costs on the indemnity basis.

 

This is exactly what I did in my recent letter (see a draft for it here http://www.consumeractiongroup.co.uk/forum/show-post/post-2078271.html with help from Photoman). So far, complete silence....

 

 

You may also wish to make a part 36 offer in a seperate letter.

 

If they don't respond, then subject to someone correcting me on my understanding of what the remainder of the test case will (and will not) determine, then you may wish to think about applying to remove the stay.

This is where I will need help....how to ask for stay to be lifted while making sure that they provide me with all relevant T&Cs, so that I can build my case?

 

Hopefully, there'll be a response in the post this week. If not, then I'll have to move on to the next step.

 

Many thanks!

Gandolfi

[GaryH]

The claim in that case will be allocated to the multi-track, where there is a duty of disclosure. So yes, they will have to disclose the t&c's and the costs of the charging process at disclosure stage.

 

However I think they'll be very reluctant to disclose the latter, so they may seek a preliminary ruling on whether the terms are capable of being penal first. If they are not, then the costs are irrelevant and your claim fails. Without seeing the t&c's its not clear what assistance the High Court judgment on penalties will be to your case, which is why its completely unreasonable of Cobbetts not to provide them asap.

 

I assume then that you are also relying on the Limitations Act arguments in respect of the older charges?

 

As I think I alluded to a while back, this claim is very risky given your costs exposure and you should probably give some serious thought as to whether you want to attempt to settle.

 

If it gets to the stage of an application to lift the stay, all you need is a simple application on a form N244 form for a) to lift the stay (briefly explaining why in part C) and b) for a response to your part 18 in particular the t&c's (again, breifly explaining in part C why its so important to have sight of them asap).

[GaryH]

Incidentally when you apply to lift the stay you can request that the stay on the part of the claim relating to the personal account remains in place and the business account part proceeds on its own. It doesn't have to be all or nothing.

[GaryH]

Any news Gandolfi?

[MARTIN3030]

Yes I was wondering too.

I was also thinking as to whether he could attatch draft directions with the application to lift the stay-I am aware of one or two doing this-which went on to be granted at Case management/directions hearings.-its the luck of the draw and having a Judge minded to grant it

[askl]

Gandolfi,

 

I have an update with my thread http://www.consumeractiongroup.co.uk/forum/legal-issues/145837-25-400-penalty-charges-2.html#post1943881.

 

In January the Court Ordered;

1) The Claim shall be stayed pending;

a) resolution of the OFT/Abbey Litigation, or,

b) upon the Claimant's application that the foregoing litigation is not relevant to this claim,

2) Subject to Paragraph (1) permission to either party to lift the stay or seek further directions.

3) The Claimant shall serve in writing in upon the defendant's answer to the following by 4pm on 28th February 2009;

a) the method of calculation, or the break-down, that gives rise to "cheque return fees" being claimed in the sum of £30.00 per item;

b) the method of calculation, or the break-down, that gives rise to the sums claimed against the defendant as "excess borrowing"."

 

 

Update 1

No answer from NatWest, so in March I applied to the court to stike out the Claim on the basis that the Bank hadn't provided the answers to 3 a & b above and that this was fundamental because Mr Justice Andrew Smith conclusion on 21/01/2009 that NatWest 2001 conditions were capable of being penalties.

The hearing is set for 7 July.

 

 

Update 2

NatWest have just applied to have heard at the same hearing on 7 July;

1) To lift the stay of proceedings "because the case is not affected by the OFT Test case in relation to charges",

2) Summary judgement against me "because the Defendant has no real prospects of successfully defending this claim",

 

 

It appears NatWest accept that the case is no longer part of the OFT case as NatWest 2001 charges have already been concluded by Mr Jutice Andrew Smith as capable of being penalties, and are trying a final bully in the hope that I will capitulate.

 

Any thoughts, fears, tactics or suggestions would be appreciated.

 

ASKL

[yourbank]

Justice smith didn't say that NatWest terms were penalties but that he couldn't state that NatWest terms were incapable of being penalties. That means that you need to specify specific terms from the 2001 terms that you believe are penalties in law. Not all of those terms maybe penalties and subsequently not all charges fall outside of the remit of the OFT test case.

[gandolfi]

Any news Gandolfi?

 

Still no reply from Cobbetts regarding the repeat of my CPR18 request for information (I asked for T&Cs, breakdown of how they calculate charges and other information originally in 2007! My last letter was in April).

 

I want to put more pressure on them to respond. This just isn't fair....

 

The last letter I sent was headed 'Without Prejudice Save as to Costs', so I'd like to send it again with a copy to the Court this time (no need for without prejudice if I'm not making an offer for settlement). This way when it comes to requesting Directions from the Court I can demonstrate how uncooperative they have been over the last two years, whilst continuing to charge me 29.5% interest).

 

Do you think this would be worth doing?

 

All best,

Gandolfi

[MARTIN3030]

Gandolfi,

 

I have an update with my thread http://www.consumeractiongroup.co.uk/forum/legal-issues/145837-25-400-penalty-charges-2.html#post1943881.

 

In January the Court Ordered;

1) The Claim shall be stayed pending;

a) resolution of the OFT/Abbey Litigation, or,

b) upon the Claimant's application that the foregoing litigation is not relevant to this claim,

2) Subject to Paragraph (1) permission to either party to lift the stay or seek further directions.

3) The Claimant shall serve in writing in upon the defendant's answer to the following by 4pm on 28th February 2009;

a) the method of calculation, or the break-down, that gives rise to "cheque return fees" being claimed in the sum of £30.00 per item;

b) the method of calculation, or the break-down, that gives rise to the sums claimed against the defendant as "excess borrowing"."

 

 

Update 1

No answer from NatWest, so in March I applied to the court to stike out the Claim on the basis that the Bank hadn't provided the answers to 3 a & b above and that this was fundamental because Mr Justice Andrew Smith conclusion on 21/01/2009 that NatWest 2001 conditions were capable of being penalties.

The hearing is set for 7 July.

 

 

Update 2

NatWest have just applied to have heard at the same hearing on 7 July;

1) To lift the stay of proceedings "because the case is not affected by the OFT Test case in relation to charges",

2) Summary judgement against me "because the Defendant has no real prospects of successfully defending this claim",

 

 

It appears NatWest accept that the case is no longer part of the OFT case as NatWest 2001 charges have already been concluded by Mr Jutice Andrew Smith as capable of being penalties, and are trying a final bully in the hope that I will capitulate.

 

Any thoughts, fears, tactics or suggestions would be appreciated.

 

ASKL

 

 

I will refere this to site team.